| People v Payne |
| 2010 NY Slip Op 02029 [71 AD3d 1289] |
| March 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Keith Payne,Appellant. |
—[*1]
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Drago,J.), rendered December 19, 2008, upon a verdict convicting defendant of the crimes of attemptedmurder in the second degree, attempted assault in the first degree, criminal possession of aweapon in the second degree (six counts), criminal possession of a weapon in the third degree(three counts), reckless endangerment in the first degree (five counts), tampering with physicalevidence (five counts) and obstruction of governmental administration in the second degree.
As a result of an incident that occurred in an apartment complex located in the City ofSchenectady, Schenectady County in which defendant and others exchanged gunfire withanother individual, and then engaged in a three-hour standoff with the police, defendant andthree codefendants were charged in a 26-count indictment with various crimes. Following a jurytrial, defendant was convicted of attempted murder in the second degree, attempted assault in thefirst degree, criminal possession of a weapon in the second degree (six counts), criminalpossession of a weapon in the third degree (three counts), reckless endangerment in the firstdegree (five counts), tampering with physical evidence (five counts) and obstruction ofgovernmental administration in the second degree. As a result of these convictions, defendant iscurrently serving an aggregate prison term of 38½ to 50 years. Defendant appeals.
Defendant initially contends that the evidence is legally insufficient to sustain theconvictions on the five counts of reckless endangerment in the first degree (counts 12 through[*2]16). A conviction of reckless endangerment in the firstdegree requires a showing that the defendant, "under circumstances evincing a depravedindifference to human life, . . . recklessly engage[d] in conduct which create[d] agrave risk of death to another person" (Penal Law § 120.25). According to defendant,because there was no evidence that he fired a gun in close proximity to or in the direction of anyof the five victims, the victims were not in grave risk of death as a result of his actions. Contraryto defendant's contention, the statute does not require that "a defendant be in close proximity to avictim" (People v Jerome, 138 AD2d 871, 872 [1988]; see People vSchoonmaker, 103 AD2d 936, 937 [1984]) but, rather, in "determining whether the crimewas committed . . . 'an objective assessment of the degree of risk presented bydefendant's reckless conduct' " must be made (People v Davis, 72 NY2d 32, 36 [1988],quoting People v Register, 60 NY2d 270, 277 [1983], cert denied 466 US 953[1984]).
Here, the evidence presented at trial established that defendant and his friends exchangedgunfire with another individual who was located across the street from their position on FrankStreet. Three of the victims (counts 12, 13 and 14) were in an apartment located directly behindthe single shooter. Another victim (count 15) was located in an apartment located behinddefendant and his friends. Viewing the evidence in the light most favorable to the People,although these four victims were inside the apartments at the time, because their apartments werein or near the line of gunfire during the shootout, the evidence was legally sufficient to permitthe jury to draw a reasonable inference of defendant's guilt with respect to those victims (seePeople v Coleman, 296 AD2d 766, 766-767 [2002], lv denied 99 NY2d 534 [2002];People v Main, 179 AD2d 953, 953-954 [1992], lvs denied 80 NY2d 834 [1992],81 NY2d 843 [1993]; compare People vScott, 70 AD3d 978, 979 [2010]). Moreover, viewing the evidence in a neutral light, weare not convinced that these four convictions are against the weight of the evidence.
However, the same cannot be said of the fifth alleged victim (count 16) who, by his owntestimony, was located inside an apartment approximately 125 feet down the street fromdefendant's location. This individual heard the gunfire and, upon emerging from the apartment,witnessed defendant and his friends on the street, all standing with their backs to him. Given thisalleged victim's observation of defendant's location, and there being no evidence that this personwas in or near the line of gunfire, including the fact that no bullets or bullet holes were found inthe direction of his location, we agree with defendant that there is legally insufficient evidence tosupport a reckless endangerment conviction with respect to this particular individual.Accordingly, the conviction on count 16 of the indictment should be reversed.
With respect to the remaining challenged convictions, viewing the evidence in the light mostfavorable to the People, there was legally sufficient evidence for a jury to infer that defendantpossessed a loaded weapon with the intent to use the same against another (counts 1, 2 and 3)(see Penal Law § 265.03 [1] [b]; see also Penal Law § 20.00),possessed a loaded weapon outside his home or place of business (counts 4, 5 and 6) (seePenal Law § 265.03 [3]; see also Penal Law § 20.00), tampered withphysical evidence by means of concealment (counts 7, 8, 9, 10 and 11) (see Penal Law§ 215.40 [2]; see also Penal Law § 20.00), attempted to cause the death ofanother person (count 23) (see Penal Law §§ 110.00, 125.25 [1]), andattempted to cause serious physical injury to another person by means of a deadly weapon (count24) (see Penal Law §§ 110.00, 120.10 [1]). Moreover, assuming that adifferent verdict would not have been unreasonable and viewing the evidence in a neutral light,we are not convinced that these convictions are against the weight of the evidence (seePeople v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant's remaining contentions, including his claim that the sentence imposed is harshand excessive, have been considered and found to be unpersuasive.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the judgment is modified, onthe law, by reversing so much thereof as convicted defendant of reckless endangerment in thefirst degree under count 16 of the indictment; said count dismissed and sentence imposed thereonvacated; and, as so modified, affirmed.